Merrill v. Vector Arms

Filing 19

ORDER ADOPTING 17 REPORT AND RECOMMENDATIONS; granting 14 Motion to Dismiss; denying in part and granting in part 10 Motion to Dismiss Case as Frivolous and Motion for Attorney Fees. Vector Arms' 10 Motion is denied in all respects except that the court grants the request for costs expended on appeal. Signed by Judge Dale A. Kimball on 8/17/2016. (eat)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

RALPH MERRILL,
ORDER AFFIRMING REPORT &
RECOMMENDATION

Appellant,
vs.
VECTOR ARMS, CORP.,

Case No. 2:15-CV-896-DAK

Appellee.
This case was assigned to United States District Court Judge Dale A. Kimball, who then
referred it to United States Magistrate Judge Dustin B. Pead under 28 U.S.C. § 636(b)(1)(B).
Appellant Ralph Merrill filed a Notice of Appeal from Bankruptcy Court on December 22, 2015.
On February 21, 2016, Appellee Vector Arms, Corp. filed a Motion to Dismiss Case as Frivolous
and a Motion for Attorney Fees. On March 3, 2016, Mr. Merrill also filed a Motion to Dismiss
the case but argued that Vector Arms was not entitled to attorney fees. On July 15, 2016,
Magistrate Judge Pead issued a Report and Recommendation recommending that the court
dismiss the appeal with prejudice, that the court award the costs of the appeal to Vector Arms,
and that the court deny the request for double costs and attorney fees to Vector Arms.
A Magistrate Judge’s Report and Recommendation is subject to de novo review by this
court. See 28 U.S.C. § 636(b)(1)(B); see also Fed. R. Civ. P. 72(b). The Report and
Recommendation notified Plaintiff that any objection to the Report and Recommendation was
required to be filed within fourteen days of receiving it. On August 1, 2016, Mr. Merrill filed a
document that this court construes as an objection to the Report and Recommendation even
though it is entitled “Response and Supplemental Memorandum.” In his objection, Mr. Merrill
requests that the court reconsider or postpone the proposed award of costs because he had good
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cause to bring the appeal. Magistrate Judge Pead agrees with Mr. Merrill that his “notice of
appeal does not appear frivolous on its face.” R. & R. at 3, July 15, 2016, ECF No. 17.
Magistrate Judge Pead’s award of costs to Vector Arms is based on Federal Rule of Bankruptcy
Procedure 8021 and not on whether good cause existed to bring the appeal. Rule 8021 provides
that, if a bankruptcy appeal to a district court is dismissed, “costs are taxed against the appellant,
unless the parties agree otherwise.” Fed. R. Bankr. P. 8021(a)(1). Because the parties did not
agree otherwise in this case, the award of costs against Mr. Merrill is appropriate.
The court has reviewed Magistrate Judge Pead’s Report and Recommendation de novo.
The court affirms and adopts the Magistrate Judge's Report and Recommendation in its entirety.
Accordingly, the Motion to Dismiss Case as Frivolous and Motion for Attorney Fees filed by
Vector Arms is DENIED in part and GRANTED in part. The motion is denied in all respects
except that the court grants the request for costs expended on appeal. Mr. Merrill’s Motion to
Dismiss is GRANTED.

DATED this 17th day of August, 2016.

BY THE COURT:

_________________________________________
DALE A. KIMBALL
United States District Judge

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